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605 F.2d 978

United States Court of Appeals,Seventh Circuit.

Refugio SILVA et al., Plaintiff-Appellees,v.

Griffin B. BELL, United States Attorney General, et al., Defendant-Appellants.No. 79-1154.

Argued June 11, 1979.Decided Aug. 23, 1979.

As Corrected Sept. 26, 1979.As Modified on Rehearing Oct. 18, 1979.

Proceeding was brought to determine how to distribute wrongfully issued visa numbers after it wasconceded that policy of Immigration and Naturalization Service of charging visa numbers assigned toCuban refugees against Western Hemisphere quotas was erroneous. The United States District Court forthe Northern District of Illinois, Eastern Division, John F. Grady, J., entered judgment, and appeal wastaken. The Court of Appeals, Tone, Circuit Judge, held that evidence established that the charged visanumbers should be allocated among the Western Hemisphere applicants on the waiting list in accordancewith historical immigration pattern for countries involved, rather than chronologically without regard tonational origin.

Reversed and remanded.

West Headnotes

[1] KeyCite Citing References for this Headnote

170A Federal Civil Procedure 170AII Parties 170AII(A) In General 170Ak103.7 k. Class Actions. Most Cited Cases (Formerly 170Ak103)

Since there was no challenge to standing of plaintiff class members residing in United States, in suitconcerning rights of aliens under Immigration and Nationality Act, constitutional “case or controversy”requirement of standing doctrine was satisfied as to nonresident class members too. U.S.C.A.Const. art.3, § 1 et seq.

[2] KeyCite Citing References for this Headnote

170A Federal Civil Procedure 170AII Parties 170AII(A) In General 170Ak103.7 k. Class Actions. Most Cited Cases (Formerly 170Ak103)

For purposes of constitutional “case or controversy” requirement of standing doctrine, ability ofplaintiff class member to show that he personally had suffered some actual injury as result of the illegal

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conduct of defendant is not affected by nonresidence. U.S.C.A.Const. art. 3, § 1 et seq.

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170A Federal Civil Procedure 170AII Parties 170AII(A) In General 170Ak103.1 Standing 170Ak103.2 k. In General; Injury or Interest. Most Cited Cases (Formerly 170Ak103.1, 170Ak103)

“Prudential principles” did not require denial of standing to nonresident members of plaintiff class ofWestern Hemisphere visa applicants whose applications had not been processed as result of improperImmigration and Naturalization Service policy, where all class members satisfied constitutional “case orcontroversy” standing requirement, presence of many thousands of resident plaintiffs would be sufficientfor action to continue, and process of “weeding out” nonresident plaintiffs would be costly and time-consuming, further forestalling relief to other plaintiffs. U.S.C.A.Const. art. 3, § 1 et seq.

[4] KeyCite Citing References for this Headnote

170A Federal Civil Procedure 170AII Parties 170AII(D) Class Actions 170AII(D)3 Particular Classes Represented 170Ak181 k. In General. Most Cited Cases

In class suit by Western Hemisphere visa applicants whose applications had not been processed asresult of erroneous policy of Immigration and Naturalization Service, even though Mexican applicantswould benefit from chronological approach in allocating visa numbers at expense of some otherapplicants, class would not be subdivided and no attempt would be made to obtain separaterepresentation for each interest, where defendants raised the issue only on appeal, plaintiffs adequatelyrepresented interests of Mexican class members, arguments had placed before court position of non-Mexican subclass and, since court was persuaded to position favorable to non-Mexican class members,absence of separate counsel did not harm them. Immigration and Nationality Act, §§ 101(a)(27)(C),212(d)(5) as amended 8 U.S.C.A. §§ 1101(a)(27)(C), 1182(d)(5).

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92 Constitutional Law 92VI Enforcement of Constitutional Provisions 92VI(C) Determination of Constitutional Questions 92VI(C)2 Necessity of Determination 92k975 k. In General. Most Cited Cases (Formerly 92k46(1))

Constitutional question should not be decided unnecessarily.

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24 Aliens, Immigration, and Citizenship 24IV Admission and Visas in General

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24IV(C) Immigrant Visas 24k175 Allocation and Preferences 24k176 k. In General. Most Cited Cases (Formerly 24k51.5, 24k511/2)

In proceeding to determine how to distribute wrongfully issued visa numbers, after it was concededthat policy of Immigration and Naturalization Service of charging visa numbers assigned to Cubanrefugees against Western Hemisphere quotas was erroneous, evidence established that the charged visanumbers should be allocated among the Western Hemisphere applicants on the waiting list in accordancewith historical immigration pattern for countries involved, rather than chronologically without regard tonational origin. Immigration and Nationality Act, §§ 101 et seq., 101(a)(27)(C), (b)(5), 201(a), 202(c),203, 212(d)(5), 245, 245(c) as amended 8 U.S.C.A. §§ 1101 et seq., 1101(a)(27)(C), (b)(5), 1151(a),1152(c), 1153, 1182(d)(5), 1255, 1255(c).

*979 Lauri Steven Filppu, Dept. of Justice, Washington, D. C., for defendants-appellants.

Bruce L. Goldsmith, Chicago, Ill., for plaintiffs-appellees.

Before CUMMINGS and TONE, Circuit Judges, and CAMPBELL, Senior District Judge. [FN*]

FN* The Honorable William J. Campbell, Senior District Judge of the United States DistrictCourt for the Northern District of Illinois, is sitting by designation.

TONE, Circuit Judge.During the period from 1968 to 1976, 144,999 Cuban refugees were granted permanent resident

status pursuant to the Cuban Adjustment Act of 1966, Pub.L. No. 89-732, 80 Stat. 1161. The visanumbers assigned to them were charged against the *980 Western Hemisphere immigration quota,thereby making those visa numbers unavailable to applicants from Western Hemisphere countries otherthan Cuba. In 1976 it was determined that the Cuban charging was in error. The question in this case ishow the erroneously charged visa numbers should be allocated among the Western Hemisphereapplicants on the waiting list, chronologically without regard to national origin, as plaintiffs contend andthe district court ordered, or in accordance with the historical immigration patterns for the countriesinvolved, as the defendants contend. Also in issue are the standing of class members who are non-resident aliens, the proper composition of the plaintiff class, and the need for subclasses.

Plaintiffs sue on behalf of themselves and a class of visa applicants from Western Hemispherecountries whose applications were filed between July 1, 1968, and December 31, 1976, but have not yetbeen processed. Defendants are the Attorney General of the United States, other federal officialsresponsible for the implementation of the immigration laws, the Immigration and Naturalization Service(INS), and the Department of State.

I

The Facts

An understanding of the problem presented requires knowledge of the recent history of theImmigration and Nationality Act and the defendants' errant attempts to implement amendments to theAct and later to correct earlier mistakes.

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When Congress enacted the present Immigration and Nationality Act in 1952, Pub.L. No. 82-414, 66Stat. 163, See 8 U.S.C. ss 1101 et seq., it placed no restriction on the number of Western Hemisphere[FN1] immigrants who could obtain permanent residence visas. 8 U.S.C. s 1101(a)(27)(C) (1964). In the1965 amendment of the Act, Pub.L. No. 89-236, 79 Stat. 911, Congress created a select commission tostudy the problems of Western Hemisphere immigration and to recommend appropriate changes in theimmigration laws, Id. at ss 21(a) through (d), 79 Stat. 920-921. Western Hemisphere immigrants wereclassified as “special immigrants,” Id. at s 8, 79 Stat. 916, but were not immediately subject to anyquota. Congress did, however, provide that unless it enacted legislation to the contrary in the interveningtime period, a numerical limitation on Western Hemisphere immigrants of 120,000 per fiscal year wouldbecome effective on July 1, 1968. Id. at s 21(e), 79 Stat. 921.

FN1. The Western Hemisphere consists of “Canada, the Republic of Mexico, the Republic ofCuba, the Republic of Haiti, the Dominican Republic, the Canal Zone, (and the) independentcountr(ies) of Central (and) South America.” Pub.L. No. 82-414, s 101(a)(27)(C), 66 Stat.169 (1952), superseded effective December 1, 1965, by 22 C.F.R. s 42.1.

After the adoption of the 1965 Amendment but before the effective date of the s 21(e) quota onWestern Hemisphere immigration, Congress enacted the Cuban Adjustment Act, Pub.L. No. 89-732, 80Stat. 1161 (1966), to alleviate the barrier to permanent residence that immigration laws interposed forCuban political refugees who had fled from Cuba to the United States after the revolution in that country.Admitted to the United States by the Attorney General pursuant to his discretionary parole power, 8U.S.C. s 1182(d)(5), these refugees did not have visas granting them permanent residence status.Because, as s 1182(d)(5) prescribes, parole admittance is temporary and a paroled alien must eventuallyeither secure a visa through regular procedures or return to his country of origin, these refugees soughtvisas. Regular procedures for visa application required contact with a consular post abroad. [FN2] Most*981 refugees, however, could not establish this necessary contact. The United States consulate in Cubahad been closed since 1961, making it impossible for Cubans to obtain visas in their native land. Many ofthe refugees arrived in this country in an impoverished state and were unable to pay for a trip outsidethe United States to visit a consulate. The closest consulates, those in Mexico and Canada, had lengthywaiting lists, which exacerbated the problem. Adjustment of status, the only avenue by which visaapplicants already present in the United States could avoid the trip to a foreign country, 8 U.S.C. s 1255(1970), was unavailable to natives of Cuba, 8 U.S.C. ss 1255(c) and 1101(b)(5) (1970). In the CubanAdjustment Act, Congress granted the Attorney General authority to adjust the status of any Cubannative or citizen who had been lawfully physically present in the United States for at least two years tothat of permanent resident alien.

FN2. An alien seeking a visa initiated the application process by submitting, or havingsubmitted on his behalf, to a consular officer or the INS certain required documentationrelevant to eligibility. After this filing the applicant was placed on the waiting list, his “prioritydate” on that list being the date on which the requisite filing was completed. 22 C.F.R. s42.62 (1967). Applications were processed in chronological order based on priority dates,without regard to an applicant's country of origin. Id. When an applicant's priority date wasreached he was scheduled for a final interview at a consular post for the purpose ofestablishing his eligibility. Applicants successfully bearing their burden of proof at theinterview received visas granting entry into the United States as lawful permanent residentaliens.

As the conditionally effective date of the s 21(e) Western Hemisphere quota approached, it becameapparent that Congress would not enact countermanding legislation. Because the Cuban Adjustment Actdid not expressly address the issue, defendants had to determine whether Congress had intended thatCuban “adjustees” be charged against the Western Hemisphere quota. Without formally explaining itsreasons for doing so, the INS adopted the policy of charging the Cubans against the quota; apparently

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with some reluctance, the Department of State acquiesced in this decision.

The charging commenced on July 1, 1968, and continued for over eight years. In 1975 and 1976several individual actions were filed by visa applicants challenging the charging policy. While these actionswere pending the Attorney General re-examined the policy. The Justice Department's Office of LegalCounsel concluded in a memorandum that “Cuban refugees whose status is adjusted to that of alienadmitted for permanent residence are not to be counted against the Western Hemisphere quota.”Thereupon, on August 31, 1976, the Attorney General ordered the INS to alter its policy to conform withthe position stated in the memorandum. The INS complied with this order on October 1, 1976. By thattime, however, 144,999 Cuban adjustees had been charged against Western Hemisphere quotas. Duringthe period the Cuban charging took place, each Cuban adjustee was charged against the WesternHemisphere quota for the year in which his status was adjusted.

On October 20, 1976, before the 144,999 erroneously charged visa numbers could be reclaimed andallocated to waiting applicants, Congress again amended the Immigration and Nationality Act, Pub.L. No.94-571, 90 Stat. 2703. The 1976 Amendment retained the 120,000 person per year quota on totalWestern Hemisphere immigration, See 8 U.S.C. s 1151(a), and, in addition, imposed a limit of 20,000 onthe total number of immigrant visas available in a fiscal year to natives of any single WesternHemisphere state. That limit became effective on January 1, 1977. Pub.L. No. 94-571, s 3(2), 90 Stat.2703. This new quota reduced Mexican immigration to this country by as much as 50 per cent and thus“made room” for increased non-Mexican immigration under the total Western Hemisphere immigrationquota. Because only Mexicans have sought visas in numbers exceeding 20,000, the length of timeMexicans must wait to have their applications processed has increased, and concomitantly, thepercentage of Mexicans on the waiting list has grown since January 1, 1977.[FN3] The 1976 Amendmentalso extended the preference system, formerly applicable only to Eastern Hemisphere immigration, toWestern Hemisphere immigration, Id., at s 7, 90 Stat. 2706, but that feature of the Amendment *982does not concern us. [FN4] The new 20,000-per-country quotas established by the 1976 Amendment,although they did not become effective until three months after the Cuban charging ceased and one andone-half months after this action was filed, are the major cause of difficulty in shaping appropriate reliefin this case, as we shall explain later.

FN3. See note 16, accompanying text, and Diagrams 2 and 3, Infra.

FN4. The preference system is a classification of visa applicants subject to quotas under 8U.S.C. s 1151(a), based on such factors as relation to United States citizens or permanentresident aliens, or employment qualifications. The classification determines the order in whichthose applicants are allotted visas. 8 U.S.C. s 1153; 22 C.F.R. ss 42.30-42.36.

Plaintiffs filed this action on November 18, 1976, contending that defendants' charging policy violatedthe Immigration and Nationality Act and the due process clause of the Fifth Amendment, and seeking,Inter alia, to compel defendants to “recapture” the visa numbers assigned to Cuban refugees and reissuethose numbers to members of the proposed plaintiff class. On January 12, 1977, the district courtcertified the plaintiff class, defined as follows:

All natives from independent countries of the Western Hemisphere who have been assigned prioritydates for the issuance of immigrant visas between July 1, 1968 and December 31, 1976, and thosepriority dates have not yet been reached for processing and who have not been called for final immigrantvisa interviews.

Insofar as is relevant here, the next significant event occurred on June 21, 1977, when defendantsentered into a stipulation with the plaintiffs in Zambrano v. Levi, 76-C-1456, a related individual actionpending before the trial judge to whom the instant case was assigned. In that stipulation defendantsconceded that the challenged charging policy was in error; the court ordered defendants to recapture two

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of the wrongfully issued visa numbers and reissue them to the Zambrano plaintiffs. Remaining before thedistrict court in this case after defendants' concession of liability was the question of relief, i.e., how todistribute the wrongfully issued visa numbers. Shortly after the Zambrano order was entered, defendantstook it upon themselves to design a program to recapture and reissue the remaining wrongfully issuedvisa numbers, and by August, 1977, had commenced redistribution of these numbers without havingconsulted with plaintiffs or obtained the permission of the court.

In designing their original recapture and reissuance program, defendants relied on estimates of thesize of the plaintiff class made from the annual statistical reports submitted by the Western Hemisphereconsular posts. Based on these reports, defendants assumed, first, that only Mexican class memberswould require recaptured visa numbers because there would be enough unused numbers for non-Mexicanclass members under the quotas instituted by the 1965 and 1976 Amendments, and second, that therecaptured visa numbers would suffice to satisfy the needs of all Mexican class members. Hencedefendants issued recaptured visa numbers only to Mexican class members, despite opposition fromcounsel for plaintiffs, who warned that defendants' estimates were inaccurate. The manner in whichdefendants reissued the visa numbers to Mexican class members was also contrary to the demand ofplaintiffs' counsel that reissuance be conducted in strict chronological order, without regard to nationalorigin. Mexican class members who could and did qualify for preference classification under the 1976Amendment received preferential treatment in the issuance of recaptured visa numbers.

In February 1978, it became apparent from the annual report submitted by the Western Hemisphereconsular posts that defendants had significantly underestimated the numbers of both Mexican and non-Mexican class members. Defendants thereupon began processing Mexican class members who establishedpreference status for current visa numbers under the annual 20,000 person quota and nonpreferenceMexican class members for recaptured visa numbers in strict chronological order. Although defendantsadmit in their brief that they then realized that non-Mexican class members *983 would also needrecaptured visa numbers, they apparently did not alter their program to accommodate this need at thattime.

Finally, in May 1978, defendants performed a major restructuring of their program, adopting what theyterm a “historical approach” to recapture and reissuance. This approach is an attempt to factor out theeffects of the 20,000-per-country quotas introduced by the 1976 Amendment, effects which are notproperly remediable, and to issue recaptured visa numbers based solely on the harm resulting from thecharging policy. Defendants' historical approach embodied the following procedure for issuing therecaptured visa numbers: first, determine how many visa numbers were charged to Cuban adjustees ineach of the relevant fiscal years; second, determine what percentage of the properly issued visa numberswas awarded to applicants from each of the Western Hemisphere nations in each of the relevant fiscalyears; third, issue the visa numbers recaptured from each year so that they are apportioned amongplaintiff class members from each nation in the same percentage that immigrants from that nationreceived properly issued visa numbers in that fiscal year.[FN5] We assume, although the record does notshow, that within each national group recaptured visa numbers were issued to applicants on achronological basis.

FN5. For example, assume that in the first fiscal year in which unlawful charging occurred,visa numbers were erroneously allocated to 1,000 Cuban adjustees; assume further that theremaining visa numbers were assigned to applicants from the following Western Hemispherenations in the following percentages: Mexico, 45%; Canada, 15%; Brazil, 10%; Venezuela,10%; Peru, 10%; Bolivia, 10%. The 1,000 recaptured visa numbers would be distributed toplaintiff class members native to these countries in the same percentages, resulting in thefollowing pattern of distribution: Mexico, 450; Canada, 150; Brazil, 100; Venezuela, 100;Peru, 100; Bolivia, 100. The same procedure would be repeated for each fiscal year in whichunlawful charging occurred.

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Plaintiffs, as we have said, did not approve of defendants' original recapture program, and in February1978 they moved to enjoin further visa issuance pursuant to it. In responding to the motion, defendantsnotified plaintiffs of the subsequent restructuring of the program; plaintiffs also disapproved of therestructured program and moved to halt its implementation. The district court denied plaintiffs' motionfor injunctive relief on June 7, 1978, but, following additional discovery and a hearing, the courtapproved plaintiffs' proposed plan of relief and ordered the processing of the current waiting list of classmembers in strict chronological order.[FN6] The district court stayed, during the pendency of this appeal,the portion of its judgment requiring that visa applications for the recaptured numbers be processed instrict chronological order.

FN6. Congress enacted the most recent major amendment to the Immigration andNationality Act on October 5, 1978, Pub.L. No. 95-412, 92 Stat. 907 (the One WorldAmendment). The 1978 Amendment combined the former Eastern and Western Hemispherequotas into one quota for immigrants from both areas. Defendants asserted that thislegislation would have the effect of reducing the number of Western Hemispherenonpreference immigrants granted visas and would consequently slow the rate at whichplaintiff class members would receive visas through normal procedures. Assuming this to betrue, the 1978 Amendment does not in any event impose any selective factors on the orderin which visa applications are processed, as did the 1976 Amendment; rather, it wouldappear to slow the application processing for all nonpreference applicants regardless ofnational origin. Because the 1978 Amendment has no new differential effects on theprocessing of visa applications of natives of the Western Hemisphere countries, it poses noadditional obstacles to the shaping of relief.

II

The Nature of the Injury

Stated simply, the Cuban charging injured plaintiff class members by delaying the processing of theirvisa applications. Visa numbers were available in limited quantities, 120,000 per fiscal year. Demandexceeded supply. Each visa number issued to a Cuban adjustee therefore not only reduced by one thenumber of Western Hemisphere natives admitted to the United States in the year of its issuance but alsoprevented persons on the waiting list from *984 advancing to the positions on the list they would haveoccupied but for the wrongful visa number issuance.[FN7]

FN7. Since not every applicant ultimately received a visa number, the charging of a Cubanvisa number displaced everyone on the waiting list by more than one position.

III

Standing

Defendants argue that plaintiff class members outside the United States lacked standing and thereforeshould be dismissed from the action. The parties agree that the authorities do not answer the questionwhether nonresident aliens have standing to file suits concerning their rights under the Immigration andNationality Act in the federal courts. See Chinese American Civic Council v. Attorney General, 185U.S.App.D.C. 1, 5 & n.9, 566 F.2d 321, 325 & n.9 (1977).

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[1] [2] That class members residing in the United States have standing, [FN8] which is notchallenged, establishes that the Article III “case or controversy” requirement of the standing doctrine issatisfied as to all class members. Warth v. Seldin, 422 U.S. 490, 498-499, 95 S.Ct. 2197, 45 L.Ed.2d 343(1975). The ability of a class member to “show that he personally has suffered some actual . . . injury([FN9] ) as a result of the . . . illegal conduct of the defendant(s),” Gladstone, Realtors v. Village ofBellwood, 441 U.S. 91, 99, 99 S.Ct. 1601, 1608, 60 L.Ed.2d 66 (1979), is not affected by nonresidence.

FN8. See Rosenberg v. Yee Chien Woo, 402 U.S. 49, 91 S.Ct. 1312, 28 L.Ed.2d 592 (1971);Chinese American Civic Council, supra, 185 U.S.App.D.C. at 5 & n.8, 7 n.15, 566 F.2d at 325& n.8, 327 n.15; See generally Johnson v. Eisentrager, 339 U.S. 763, 70 S.Ct. 936, 94 L.Ed.1255 (1950).

FN9. See Part II of this opinion, Supra.

Hence the question becomes whether standing should be denied by reason of the “prudentialprinciples” which sometimes dictate a denial of standing even though the Article III standing requirementis satisfied. Despite policy reasons for not generally “affording a Federal forum for a person anywhere inthe world challenging denial of entry or immigration status . . .,” Chinese American Civic Council v.Attorney General, 396 F.Supp. 1250, 1251 (D.D.C.1975), Aff'd on other grounds, Chinese American CivicCouncil, supra, 185 U.S.App.D.C. 1, 566 F.2d 321, this is a case in which the prudential principles weighin favor of granting standing.

[3] [4] [5] As defendants themselves acknowledge,

The practicalities of issuing recaptured numbers (i.e., of granting the relief sought in this case) dictatesimilar treatment for similarly situated aliens, both within and without the United States.

Prudence, or “self-restraint,” See Association of Data Processing Service Organizations, Inc. v. Camp,397 U.S. 150, 154, 90 S.Ct. 827, 25 L.Ed.2d 184 (1970), would not have us deny standing to manythousands of class members who satisfy the Article III standing requirement when the presence of manythousands of other plaintiffs will require the action to continue and the process of “weeding out” theformer undoubtedly would be costly and time-consuming, further forestalling relief to the other plaintiffs.[FN10] Justice and judicial economy are served by allowing visa applicants outside the United States toremain as members of the class.[FN11] The district court's holding that *985 all members of the plaintiffclass have standing to sue is sustained.[FN12]

FN10. The District of Columbia Circuit's decision in Jaimez-Revolla v. Bell, 194 U.S.App.D.C.324, at 327, 598 F.2d 243, at 246 (1979), suggests that at least those plaintiff classmembers presently outside the United States who once resided in the United States mighthave standing because of their previous residence here. Because of our conclusion thatstanding exists in any event, we need not consider this point.

FN11. Also, requiring residence in the United States might encourage aliens to enter thecountry illegally to acquire standing to prosecute their own individual claims. See Brownell v.Tom We Shung, 352 U.S. 180, 182-184 & n.3, 77 S.Ct. 252, 1 L.Ed.2d 225 (1956); ChineseAmerican Civic Council, supra, 185 U.S.App.D.C. at 7 n.15, 566 F.2d at 327 n.15; Seegenerally Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 212, 73 S.Ct. 625, 97L.Ed. 956 (1953).

FN12. Defendants raise two other issues which we resolve summarily before addressing theprimary issue of relief.First, although never having raised the point before, defendants nowassert that conflicts exist among class members because of the limited number of recaptured

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visa numbers that are available, and argue that the class should be subdivided and anattempt made to obtain separate representation for each interest. Plaintiffs oppose thisposition, and no class member has ever suggested it. It appears that there are two potentialsubclasses: (1) Mexican visa applicants, who stand to benefit from the chronologicalapproach at the expense of at least some applicants from other countries, and (2) applicantsfrom other countries, some of whom at least would benefit from a historical approach at theexpense of the Mexican applicants. We do not deprecate the importance of having conflictinginterests separately represented, and if defendants had timely moved to subdivide the classtheir motion would have had merit. Under the peculiar circumstances of this case, however,we believe that at this late date the class should not be subdivided for separaterepresentation. Plaintiffs have forcefully presented the arguments in favor of the chronologicalapproach, thereby adequately representing the interests of the Mexican class members.Defendants' similarly forceful arguments in support of the historical approach, coupled withthe assertions of plaintiffs' counsel that all recaptured visa numbers must be reissued, haveplaced before this court the position a non-Mexican subclass would have taken. Furthermore,since we are persuaded that defendants' historical approach, modified to require distributionof all recaptured visa numbers, is correct, and have therefore adopted the position mostfavorable to the non-Mexican class members, they have not suffered any harm as a result ofnot having had separate counsel. What defendants propose would further delay relief that hasalready been too long withheld.

Defendants also contend that the district court erred in holding that the charging policyviolated plaintiffs' due process rights. Regardless of the merits of that holding, it wasunnecessary in light of the court's holding that the charging policy violated the Immigrationand Nationality Act. Constitutional questions should not be decided unnecessarily. RescueArmy v. Municipal Court of Los Angeles, 331 U.S. 549, 568-574, 67 S.Ct. 1409, 91 L.Ed.1666 (1947). The recital of this holding in the judgment is stricken.

IV

The Appropriate Relief

[6] Both parties agree that relief, in the form of a program to recapture and reissue the wrongfullyissued visa numbers, is appropriate. The parties also appear to agree that the recaptured visa numbersshould be allocated in the manner that will place plaintiff class members, as near as may be, in thepositions they would have occupied but for the Cuban charging policy.[FN13] The parties do not agree,however, on how to effectuate this goal.

FN13. This proposition is simply an application of the tenet that equitable relief should“restore the plaintiff to the enjoyment of the right which has been interfered with to thefullest extent possible . . . .” Graves v. Romney, 502 F.2d 1062, 1064 (8th Cir. 1974), Cert.denied, 420 U.S. 963, 95 S.Ct. 1354, 43 L.Ed.2d 440 (1975).

Absent the effects of the 20,000-per-country quota imposed by the 1976 Amendment, shaping reliefto restore plaintiff class members to the approximate positions they should have occupied would havebeen a simple task. As the parties agreed at oral argument, if it had been possible to effect completerelief as soon as the entitlement of each of the plaintiff class members was established and beforeJanuary 1, 1977, the effective date of the 1976 Amendment, the proper procedure would have been toprocess the applicants in strict chronological order based on their priority dates, i.e., in their order on the

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waiting list, until defendants had either issued all the visa numbers or processed the applications of allplaintiff class members. This action would have had the effect of advancing each of the plaintiff classmembers on the list approximately as many places as he or she had lost through the Cuban chargingpolicy. This was the relief each applicant on the list was entitled to at that time, and that relief shouldnot be denied because of either lapse of time or an extraneous event.

The 1976 Amendment complicated matters by adding country of origin as a factor affecting the orderin which defendants *986 processed applications. As we explained in Part I of this opinion, theapplication of this selective factor in the ongoing processing of visa applications during the pendency ofthis suit has caused many applications of Mexicans to be passed over in favor of applications of non-Mexicans with later priority dates. Hence the percentage of Mexican class members has continuouslyincreased, and the top of the current Western Hemisphere waiting list consists almost exclusively ofMexicans.

In order to achieve, as near as may be, the result that would have been obtained had it been possibleto give relief before the effective date of the 1976 Amendment, the effects of the amendment must befactored out. To accomplish this, and thus to determine what plan of processing should be adopted, wehave prepared the three schematic diagrams appearing below. Each diagram represents the waiting listas of December 31, 1978. Diagram 1 illustrates what the present status of members of the plaintiff classwould be if relief had been effective immediately, before the advent of the 20,000-per-country quotas.Diagram 2 represents the effects the court-ordered chronological processing would have if affirmed here.Diagram 3 shows how defendants' historical approach would work if we were to adopt it.

The facts as depicted in the diagrams are simplified to make the analysis more readily comprehensiblewithout affecting its validity. The relevant figures have been divided by 10,000. Thus in the diagrams it isassumed that

(a) a maximum of twelve Western Hemisphere natives may receive visas in a single year;

(b) no more than two visa recipients may come from any one country in one year; [FN14]

FN14. Because the applicants from any Western Hemisphere country other than Mexico havenot exceeded 20,000 per year, See text at note 3, Supra, it is also assumed that not morethan two non-Mexican applicants reached in any year are from a single country.

(c) fourteen recaptured visa numbers are to be distributed; and

(d) there are sixty names on the waiting list as of December 31, 1976 (the actual list contained400,000 names, but using sixty rather than forty makes it possible to demonstrate the functioning of theplans more fully).[FN15]

FN15. The district court found that “it is unlikely that there will be sufficient recaptured visanumbers to process all plaintiffs and class members,” so our “expansion” of the waiting listdoes not render our diagrams inaccurate.

For purposes of simplicity we also have assumed the following:

(1) that Mexican immigration in each of the relevant years constituted 50 per cent of the totalWestern Hemisphere immigration, and the waiting list on January 1, 1977 reflected that pattern, everysecond person on the list being Mexican;

(2) that two full years of application processing have passed since January 1, 1977, during which four

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Mexican class members and twenty non-Mexican class members have received visas through normalprocessing and during which defendants issued none of the recaptured visa numbers; and

(3) that all class members are qualified to receive visas.

The symbols used in the diagrams below have the following meanings:

even numbers represent Mexican class members;

odd numbers represent non-Mexican class members;

circles represent recipients of recaptured visa numbers;

boxes represent recipients of current Year 1 visa numbers; and

diamonds represent recipients of current Year 2 visa numbers.

Diagram 1 shows how the recaptured visa numbers would have been distributed if it had beenpossible to do so before the distorting effects of the 1976 Amendment were felt. This diagram thusshows the effect of first distributing all recaptured *987 visa numbers and then distributing Year 1 andYear 2 visa numbers:

Image 1 (2.55" X 1.52") Available for Offline Print

In Diagram 1 the recaptured visa numbers have been reissued in chronological order to persons onthe waiting list, regardless of country of origin. Hence, persons 1 through 14 would have received thesevisa numbers. Thereafter, two Mexicans, 16 and 18, and ten non-Mexicans, 15, 17, 19, 21, 23, 25, 27,29, 31, and 33 would have received visa numbers through normal processing in Year 1. Similarly, in Year2, two Mexicans, 20 and 22, and ten non-Mexicans, 35, 37, 39, 41, 43, 45, 47, 49, 51, and 53 wouldhave received visa numbers.

Diagrams 2 and 3 show how the recaptured visa numbers would be distributed according to thealternative proposed plans now that the distorting effects of the 1976 Amendment have taken place.These diagrams thus show the effects of first distributing current visa numbers for Years 1 and 2 andthen distributing recaptured visa numbers according to the alternative plans. Diagram 2 shows thechronological, or court-ordered plan, and Diagram 3 the historical plan proposed by defendants:

Image 2 (2.55" X 1.51") Available for Offline Print

Image 3 (2.52" X 1.57") Available for Offline Print

In both diagrams, allocation of current visa numbers for each year is of course the same. Thus, duringYear 1 two Mexicans, 2 and 4, and ten non-Mexicans, 1, 3, 5, 7, 9, 11, 13, 15, 17, and 19, receivedcurrent Year 1 visa numbers; during Year 2 two Mexicans, 6 and 8, and ten non-Mexicans, 21, 23, 25,27, 29, 31, 33, 35, 37, and 39, received current Year 2 visa numbers.[FN16]

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FN16. This provides an excellent illustration of how the 1976 Amendment affected the orderof processing and, concomitantly, the composition of the waiting list; starting with Mexicansand non-Mexicans alternating on the list, after two years the first fourteen people on thewaiting list, who would receive all the recaptured visa numbers, are Mexican.

The recaptured visa numbers are distributed differently in the two diagrams. Thus in Diagram 2,representing the chronological plan, all fourteen recaptured visa numbers are allocated to Mexicans, 10,12, 14, 16, 18, 20, 22, 24, 26, 28, 30, 32, 34, and 36. A comparison of the distribution of recapturednumbers in Diagrams 1 and 2 demonstrates that the court's order does not parallel the results of theideal.

Diagram 3, representing the historical approach, produces a distribution of recaptured numbers thatdoes simulate the ideal: 10, 12, 14, 16, 18, 20, and 22 of the Mexicans and 41, 43, 45, 47, 49, 51, and53 of the non-Mexicans receive recaptured visas. A comparison of Diagrams 1 and 3 shows thatdefendants' historical approach produces the same distribution of recaptured visa numbers as the ideal.In both diagrams the persons remaining on the waiting list are as follows: 24, 26, 28, 30, 32, 34, 36,38, 40, 42, 44, 46, 48, 50, 52, 54, 55, 56, 57, 58, 59, and 60. In Diagram 2, however, the personsremaining on the waiting list are as follows: 38, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53,54, 55, 56, 57, 58, 59, and 60. Thus, Diagram 3 produces the allocation that would properly have beenmade if relief *988 could have been effected before the advent of the 1976 Amendment. Diagram 2does not.

It is apparent from this demonstration that the proper object of relief is better served by defendants'historical plan than by the strict chronological plan ordered by the district court and advocated byplaintiffs. We recognize that in actual implementation the historical approach will not produce a perfectreplication of the ideal, because the result will be affected by the sequence in which Mexican and otherapplicants' names happen to appear on the list, and because death and other causes have removednames from the list, thus advancing other names. The replication will, however, when corrected asprovided below, be as accurate as the circumstances permit.

Plaintiffs have two objections to defendants' historical approach to the reissuance of recaptured visanumbers. First, they contend that the historical approach, by using national origin as a criterion fordetermining the order in which applications are processed, is inconsistent with the Congressional policyduring the relevant period, Viz., that visa applications were to be processed chronologically withoutregard to national origin. Ignoring the effect of the 20,000-per-country quotas of the 1976 Amendment,however, as plaintiffs propose, would have the practical effect of skewing the results in favor of onenational group, which is hardly consistent with pre-1976 Congressional policy. Congressional policy is notoffended, and justice to all parties is best served, by achieving the result, as near as may be, that wouldhave been achieved by a grant of the proper relief at the time plaintiffs became entitled thereto.

Plaintiffs also object to defendants' historical approach on the ground that it will not result inreissuance of all recaptured visa numbers, even though some class members might remain unprocessed.As defendants concede, plaintiffs are correct in stating this would be the result.[FN17] Because reliefgranted when plaintiffs' rights were established and before December 31, 1976, would have includedreissuance of all the recaptured visa numbers or processing of all class members and issuance of asmany recaptured visa numbers as there were qualified applicants, plaintiffs are entitled to that relief now.Fortuitous delay should not result in curtailment of the remedy.

FN17. To illustrate, in the hypothetical set forth in note 5, Supra, we determined that 100recaptured visa numbers “belonged” to Bolivian visa applicants. If fewer than 100 qualifiedBolivian class members remain, however, under defendants' approach the extra visa numbers

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are never reissued.

We therefore reverse the final judgment order, in Paragraph 4 of which the district court orderedreissuance pursuant to a strict chronological processing procedure, and direct the court, on remand, tomodify that order to conform with the following directions:

The court will adopt, as the basic format for reissuance, defendants' historical approach, set forth inthe text accompanying note 5, supra. Two modifications of that plan are necessary, however, to insuremaximum approximation of the pre-1977 ideal. First, the new plan must account for those recapturedvisa numbers, between 68,000 and 69,000 in number, which had already been reissued by defendantsbefore the district court entered its judgment. Fortunately, factoring out the effects of the unauthorizedreissuance should not prove too difficult. The district court should first determine how many of therecaptured visa numbers issued before October 10, 1978, were given to natives of each of the WesternHemisphere countries. In implementing what we have described in the text accompanying note 5, supra,as the third step of their historical plan, defendants should reduce the number of recaptured visanumbers to be issued to plaintiff class members from each country by the number of recaptured visanumbers previously issued to natives of the respective countries.[FN18]

FN18. The following example will clarify this instruction: Referring to the hypothetical in note5, Supra, assume that the figures set forth there for the first fiscal year also hold true forthe second and third fiscal years. Distribution pursuant to defendants' historical approachwould have resulted in reissuance of recaptured visa numbers for the first three fiscal yearsto natives of these countries as follows: Mexico, 1,350; Canada, 450; Brazil, 300; Venezuela,300; Peru, 300; Bolivia, 300. Further assume that natives of these countries receivedrecaptured visa numbers pursuant to the unauthorized distribution plans as follows: Mexico,1,200; Canada, 450; Brazil, 200; Venezuela, 100; Peru, 50; Bolivia, 0. Of the visa numbersfrom Cubans whose status was adjusted in the first fiscal year, natives of these countriesshould receive the remaining visa numbers as follows: Mexico, 0; Canada, 0; Brazil, 0;Venezuela, 0; Peru, 50; Bolivia, 100. Of those recaptured from the second fiscal year:Mexico, 0; Canada, 0; Brazil, 0; Venezuela, 100; Peru, 100; Bolivia, 100. Of those recapturedfrom the third fiscal year: Mexico, 150; Canada, 0; Brazil, 100; Venezuela, 100; Peru, 100;Bolivia, 100.

*989 The second modification FN19 is necessary to remedy the failure of defendants' plan to providefor the reissuance of all recaptured visa numbers. It involves adding a redistribution process to thedistribution process already adopted by the government in its historical approach. Visa numbers shallcontinue to be allocated to each country according to its historical share computed on the basis of theeight-year cumulative totals from 1968 to 1976. Those visa numbers already issued pursuant to theunauthorized recapture program shall be credited against each country's total historical share. Should acountry exhaust its total historical share of visa numbers, no further visa numbers would be allocated toit except under the redistribution process as described below.

FN19. The portion of the opinion dealing with the second modification was revised onrehearing.

Under the redistribution process, those historical share visa numbers which are unused shall beredistributed to countries with qualified visa demand FN20 in excess of their total historical share. Theseunused visa numbers shall be redistributed to such countries in proportions equal to their relativehistorical use of visa numbers between 1968 and 1976. For example, assume Mexico, Colombia, andJamaica are the only countries for which redistribution is required. Then, if Mexico received 75 per centof the visa numbers issued to these three countries between 1968 and 1976, Mexico would receive 75%Of the unused visa numbers. The redistribution percentages shall be recomputed, as necessary, to permit

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the addition or deletion of countries from the redistribution process.

FN20. Qualified visa demand, as used here, means demand by applicants who have taken thesteps necessary for their final visa interviews.

The parties advise the court that it is highly probable that some countries will not exhaust theirshares, with the result that other countries will necessarily participate in the redistribution of the unusednumbers. Accordingly, as soon as practicable, the district court shall permit redistribution during thehistorical share distribution process, and require periodic recomputation of the quantity of unused visanumbers for redistribution to reflect the actual issuances. It is recognized that, even though unused visanumbers from a country have already been identified as available for redistribution, late qualifyingapplicants from that country may appear; if this occurs, the supply of unused visa numbers forredistribution will be correspondingly reduced. These late applicants, who may have encountered delaysin gathering their visa paperwork, shall be eligible to participate in the recapture program until allrecaptured visa numbers are exhausted.

Within each national group, recaptured visa numbers shall be made available to visa applicants in thechronological order in which they qualify. The processing of applications should not cease until allrecaptured visa numbers are reissued or all plaintiff class members have been processed.

The district court shall require the entire recapture program to be completed within two years of theentry of the order on remand. This timetable may not be altered unless deemed necessary by the partiesor upon a compelling showing that the interests of justice so require or that subsequent circumstancesimpose an unduly heavy burden on the defendants so as to justify a short extension of time to completethe processing. The district court may exercise *990 its discretion, when necessary, to effect this court'sorder by adopting procedures reasonably calculated to facilitate the recapture program.

The judgment is reversed and the case is remanded for further proceedings consistent with thisopinion. The district court is directed to give this case the highest priority and to expedite both theproceedings before it and the actual process of reissuing the recaptured visa numbers. Our mandate shallissue forthwith.

Reversed and Remanded.

C.A.Ill., 1979.Silva v. Bell605 F.2d 978

END OF DOCUMENT

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